NOTE THAT THE APRIL CASES SUMMARIZED HERE ARE NOW INCLUDED IN ISSUE 14 OF THE NEW YORK APPELLATE DIGEST---THE FOURTH DEPARTMENT CASES, DATED MAY 1, 2015 (SUMMARIZED HERE), ARE NOT INCLUDED IN ISSUE 14

 

APPEALS

 

No Appeal Lies from a Vacated Order

 

In the context of a Mental Hygiene proceeding in which respondent was adjudicated a dangerous sex offender requiring confinement, the Third Department determined no appeal lies from a vacated order.  Supreme Court had vacated the order because the Court of Appeals held that antisocial personality disorder, from which respondent suffers, cannot be relied upon to show a mental abnormality within the meaning of Mental Hygiene Law 10.03 (i).  Respondent's appeal from the vacated order could not be heard. Matter of State of New York v Richard TT., 2015 NY Slip Op 03591, 3rd Dept 4-30-15

 

 

 

CRIMINAL LAW/DOUBLE JEOPARDY/CIVIL PROCEDURE

 

Double Jeopardy Does Not Bar Prosecution of a Lesser Included Offense Never Considered by the Trier of Fact in the First Trial

 

The Fourth Department noted that an Article 78/prohibition action is a proper vehicle for raising double jeopardy as a bar to a prosecution. Defendant was charged with two counts of Driving While Intoxicated (DWI) and one count of Driving While Ability Impaired (DWAI).  In a bench trial, defendant was acquitted of one count of DWI and the second count of DWI, of which defendant was initially convicted, was subsequently dismissed pursuant to a post-trial motion because of the legal insufficiency of the evidence.  Under these circumstances, because the DWAI count was never considered in the bench trial, a second trial on that charge alone does not violate the double jeopardy prohibition:

 

"[I]n a bench trial, it is presumed that the Judge sitting as the trier of fact made his [or her] decision based upon appropriate legal criteria" ... . Here, the court, upon acquitting defendant of common-law DWI, would have applied the "acquit-first" rule ..., and next considered DWI, per se, before reaching DWAI as a lesser included offense under either count of DWI ... . Inasmuch as the court convicted defendant of the count charging DWI, per se, it could not have reached the lesser included offense of DWAI. Consequently, we conclude that "double jeopardy concerns . . . are not present in the case at hand . . . [because] the People here d[o] not seek to retry defendant on the count[, i.e., DWI, per se, or common-law DWI] of which he was acquitted at the first trial. Rather, the only count at issue in the retrial [will be] the lesser [DWAI] charge for which the [court did not] reach a verdict. At no point during the retrial [will] defendant [be] in jeopardy of conviction of the greater offense. Thus, there [i]s no constitutional double jeopardy bar to [a] second trial" on the lesser included offense of DWAI ... . Matter of Case v Sedita, 2015 NY Slip Op 03630, 4th Dept 5-1-15

 

 

 

ATTORNEYS/FAMILY LAW

 

Attorney's Charging Lien Based Upon a Judgment for Child Support Arrears Was Proper---Relevant Law Explained

 

The Fourth Department, in the context of plaintiff's attempt to collect a judgment reflecting child support arrears, determined an attorney's charging lien was appropriately attached to the proceeds of the sale of defendant's property.  The court rejected the argument that child support payments are exempt from an attorney's charging lien, at least under the facts of this case.  Here the children were already emancipated and the nonpayment was not enforced for 16 years.  The Fourth Department explained the law surrounding attorney's charging liens, and noted the exemptions for proceedings before "a department of labor" and an award of alimony or maintenance:

 

Under the common law, "the attorney's lien was a device invented by the courts for the protection of attorneys against the knavery of their clients, by disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained' "... . Judiciary Law § 475 "codifies and extends the common-law charging lien" ..., by providing an attorney with "a lien upon his or her client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client's favor, and the proceeds thereof in whatever hands they may come" (§ 475 ...). The statute is remedial in nature and therefore must "be construed liberally in aid of the object sought by the [L]egislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action" ... . "The lien comes into existence, without notice or filing, upon commencement of the action or proceeding," and "gives the attorney an equitable ownership interest in the client's cause of action" ... .

 

The only exception contained in the statute is for proceedings before "a department of labor" (Judiciary Law § 475). In addition to that statutory exception, the Court of Appeals has held that, as a matter of public policy, a charging lien may not attach to an award of alimony or maintenance ... . Mura v Mura, 2015 NY Slip Op 03639, 4th Dept 5-1-15

 

 

ATTORNEYS/LEGAL MALPRACTICE/APPEALS

 

Attorney-Defendants Demonstrated the Dismissal of the Complaint Was an Error Which Would Have Been Corrected Had the Plaintiffs Appealed---Therefore There Was No Question of Fact Whether the Actions of the Attorneys Constituted the Proximate Cause of the Damages Alleged

 

The Second Department determined Supreme Court should have granted summary judgment to the attorney defendants.  The defendants demonstrated that plaintiffs would not have succeeded on the cause of action against the hospital in the underlying medical malpractice action (the defendants had agreed to discontinue the action against the hospital). And the defendants demonstrated that Supreme Court's dismissal of the complaint for failure to prosecute was an error which would have been corrected had the plaintiffs appealed.  Therefore there was no question of fact whether the actions of the defendant attorneys proximately caused the alleged damages:

 

Here, the defendants established, prima facie, that the plaintiffs would not have succeeded on the merits of their underlying medical malpractice action insofar as asserted against the Hospital, regardless of whether the defendants consented to the discontinuance ... . The defendants' submissions demonstrated that the Hospital staff involved in the underlying medical procedures properly carried out the directions of the attending private physicians and did not engage in any independent negligent acts ... . ...

 

The defendants also established, prima facie, that their alleged negligence in failing to prosecute the action was not a proximate cause of the damages alleged in the complaint since the plaintiffs chose not to appeal from the order that dismissed the complaint insofar as asserted against the other defendants. The failure to pursue an appeal in an underlying action bars a legal malpractice action where the client was likely to have succeeded on appeal in the underlying action ... . The Court of Appeals has stated that this "likely to succeed" standard "obviate[s] premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow[s] attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients' unfavorable result" (Grace v Law, 24 NY3d at 210). By establishing that an appeal would likely have been successful, a defendant in a legal malpractice action can establish that the alleged negligence did not proximately cause the plaintiff's damages (see id.).

 

Here, the defendants' submissions demonstrated that the court in the underlying action dismissed the complaint insofar as asserted against the other defendants pursuant to CPLR 3216 ... . As the defendants correctly contend, that order would have been reversed on appeal since it was error, as a matter of law, to dismiss the action pursuant to CPLR 3216 where no 90-day demand had been served and where a note of issue had previously been filed and remained in effect ... . Furthermore, the defendants adequately demonstrated that dismissal pursuant to CPLR 3404 was inapplicable since the case was not "marked off or stricken from the trial calendar" ... . Accordingly, the defendants established, prima facie, that the plaintiffs were likely to have succeeded on appeal in the underlying action and that the asserted malpractice in failing to prosecute the action was a not a proximate cause of the alleged damages ... . In opposition, the plaintiffs failed to raise a triable issue of fact ... . Buczek v Dell & Little, LLP, 2015 NY Slip Op 03492, 2nd Dept 4-29-15

 

 

ATTORNEYS/LEGAL MALPRACTICE/FRAUD/CONTRACT LAW

 

Continuous Representation Doctrine Did Not Toll the Statute of Limitations for the Legal Malpractice Cause of Action/Fraud, Excessive Fees and Unjust Enrichment Causes of Actions Were Not Duplicative of the Legal Malpractice Cause of Action/Punitive Damages Claim Properly Pled

 

The First Department, in a full-fledged opinion by Justice Mazzarelli, in the context of a motion to dismiss for failure to state a cause of action, determined the continuous representation doctrine did not toll the statute of limitations for the legal malpractice cause of action, the fraud, excessive fees, and unjust enrichment causes of action were not duplicative of the legal malpractice action, and the demand for punitive damages properly survived dismissal. It was alleged that defendants-attorneys gave the plaintiffs bad advice re: a tax shelter and failed to inform plaintiffs of the close business ties between the attorneys and a firm which profited directly from the advice given plaintiffs. With regard to the continuous representation doctrine, the court explained that, in order to toll the statute, the representation must relate to the specific matter out of which the malpractice is alleged to have arisen---an on-going relationship on other matters does not toll the statute. The allegation that the defendants did not disclose their business relationship with the firm profiting from the legal advice was sufficient to support the fraud cause of action (as "non-duplicative"). The excessive fees and unjust enrichment causes of action were likewise not duplicative of the legal malpractice cause of action. The punitive damages claim was sufficiently pled because it alleged a wide-ranging scheme affecting many of defendants' clients:

 

...[W]hile there was certainly the possibility that the need for future legal work would be required with respect to the tax strategy, plaintiffs could not have "acutely" anticipated the need for further counsel from defendants that would trigger the continuous representation toll. * * *

 

Defendants argue that, because the legal malpractice claim is time-barred, plaintiffs' other claims arising out of the representation are also time-barred since they are merely duplicative of the malpractice cause of action. This contention derives from CPLR 214(6), which was enacted to prevent plaintiffs from circumventing the three-year statute of limitations for professional malpractice claims by characterizing a defendant's failure to meet professional standards as something else, such as a breach of contract (for which there is a six-year statute of limitations) ... . The key to determining whether a claim is duplicative of one for malpractice is discerning the essence of each claim ... . * * *  Here, the essences of the fraud and malpractice claims are sufficiently distinct from one another that the court properly did not invoke the duplicative claims doctrine. * * *

 

The excessive fee and unjust enrichment claims are also not duplicative of the malpractice claim. The former is stated regardless of the quality of the work performed, so long as a plaintiff can reasonably allege that the fee bore no rational relationship to the product delivered ... . Here, plaintiffs did so, since they asserted that defendants collected a $425,000 fee for a "cookie cutter" legal opinion. By the same logic, the unjust enrichment claim, which is predicated on the excessiveness of the $425,000 fee, also properly survived the motion to dismiss. * * *

 

...[P]laintiffs' claim for punitive damages properly survived dismissal. Defendants' conduct is alleged to have been directed at a wide swath of clients, and the first amended complaint sufficiently alleges intentional and malicious treatment of those clients as well as a "wanton dishonesty as to imply a criminal indifference to civil obligations" ... .  Johnson v Proskauer Rose LLP, 2015 NY Slip Op 03626, 1st Dept 4-30-15

 

 

CIVIL PROCEDURE

 

Summary Judgment Motion Served Within 60 Days of the Filing of the Note of Issue but Filed on the 61st Day Deemed Untimely

 

The First Department, reversing Supreme Court, strictly enforced a Supreme Court "individual part rule" and deemed a summary judgment motion untimely.  The rule requires a motion for summary judgment to "filed" within 60 days of the filing of the note of issue.  Here the motion was served within the 60 days but was filed on the 61st day. Connolly v 129 E. 69th St. Corp., 2015 NY Slip Op 03450, 1st Dept 4-28-30

 

 

CIVIL PROCEDURE

 

Including "Statute of Limitations" in a Catch-All Paragraph Listing Many Affirmative Defenses Did Not Provide Plaintiff with Sufficient Notice---At a Bare Minimum, the Duration of the Relevant Statute of Limitations, Six Years Here, Should Be Pled

 

The First Department, in a full-fledged opinion by Justice Acosta, with an extensive concurrence, determined that the inclusion of the "statute of limitations" in a catch-all paragraph listing many affirmative defenses did not provide sufficient notice to the plaintiff.  In addition to failing to separately number and plead each affirmative defense (as required by the CPLR) the defendant failed to plead what the applicable statute of limitations (six years here) was. The court criticized a Court of Appeals case which said that simply mentioning the "statute of limitations" as an affirmative defense is sufficient notice---the First Department specifically suggested that the Court of Appeals revisit the issue. The court held that the plaintiff was prejudiced by the failure to plead the applicable (six-year) statute of limitations because the issue was not directly addressed during discovery as a result of the insufficient notice.  Supreme Court's grant of summary judgment to the defendant was reversed on the merits (competing expert affidavits raised questions of fact). The defendant was allowed to replead the affirmative defense and the plaintiff was allowed further discovery on the issue:

 

The result of defendant's failure to comply with CPLR 3014 is that its statute of limitations defense lay buried within a paragraph of mostly irrelevant, and conclusory, defenses. Although plaintiff could have moved to compel separate numbering ..., it was not required to make such a motion because defendant's answer did not necessitate a responsive pleading (see CPLR 3018; CPLR 3024). Thus, plaintiff cannot be forced to accept the defective answer simply because it declined to make a motion to compel separate numbering.

 

Further, we have no doubt that defendant was permitted to plead its affirmative defenses hypothetically — which it apparently attempted to do by "reserving" those defenses unto itself — but only insofar as those defenses were concise, separately numbered, and sufficiently stated (CPLR 3013; CPLR 3014). A permissive hypothetical pleading does not extend so far as to authorize a defendant to plead each and every affirmative defense that might exist without regard to its relevance to the cause(s) of action presented by the complaint. Permitting such conduct here would effectively sanction deception on the part of defendant, whether intentional or not, thereby avoiding the CPLR's notice requirement. In other words, defendant's formulation of its laundry list of defenses in hypothetical terms does not exempt it from the other requirements of CPLR 3014.

 

The question, therefore, becomes one of prejudice. That is, the CPLR directs us to construe a defendant's answer liberally and disregard defects unless a substantial right of the plaintiff would be prejudiced (see CPLR 3026). This must be done in light of the overarching directive that the CPLR "be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding" (CPLR 104). "[W]e must literally apply the mandate [to construe pleadings liberally] as directed and thus make the test of prejudice one of primary importance" ... . * * *

 

It seems clear that a court cannot require a level of particularity beyond that outlined by the Official Forms; to do so would contravene CPLR 107's command that pleadings that comply with the forms are sufficient as a matter of law ... . Thus, the most that a court could require of a defendant pleading the statute of limitations is to state the applicable period of limitations, as set forth in Official Form 17. We acknowledge that Official Form 17 establishes a ceiling, not a floor. To be sure, a defendant whose answer pleads the "statute of limitations" and includes the applicable period of limitations will necessarily be in compliance with the official form, and courts must deem that pleading sufficient pursuant to CPLR 107 and CPLR 3013. Scholastic Inc. v Pace Plumbing Corp., 2015 NY Slip Op 03489, 1st Dept 4-28-15

 

 

 

CIVIL PROCEDURE/MUNICIPAL LAW/NEGLIGENCE

 

Special Proceedings, Here a Motion to File a Late Notice of Claim, Are Subject to the Same Standards and Rules as Motions for Summary Judgment---Supreme Court Should Not Have Considered New Evidence Presented for the First Time in Reply Papers

 

In finding that plaintiff's motion to file a late notice of claim should not have been granted (inadequate excuse for delay, misrepresentations made to the court), the First Department explained that Supreme Court should not have considered matters raised for the first time in petitioner's reply papers.  The court noted that special proceedings are subject to the same standards and rules as those applied to summary judgment motions:

 

As a matter of procedure, the motion court erred in entertaining arguments advanced for the first time in petitioners' reply papers and in accepting their offer of new proof, unnecessarily protracting summary proceedings. As succinctly stated by this Court:

 

"It is settled that a special proceeding is subject to the same standards and rules of decision as apply on a motion for summary judgment, requiring the court to decide the matter upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised'" ... .

 

We further held that where, as here, a petition is unsupported by sufficient evidentiary proof, the petitioning party will not be entitled to remedy those deficiencies ..., thereby extending a procedure providing for summary disposition through "unnecessary and unauthorized elaboration" ... . We have consistently stated that in proceedings subject to summary determination, no consideration is to be accorded to novel arguments raised in reply papers ... . That this Court may, in the exercise of discretion, entertain such arguments upon review ... does not endorse the unnecessary extension of summary proceedings. Under these circumstances, it was improvident to excuse petitioners' deceit and grant their application to serve a late notice of claim. Matter of Gonzalez v City of New York, 2015 NY Slip Op 03467, 1st Dept 4-28-15

 

 

 

CIVIL PROCEDURE/FORECLOSURE

 

Failure to Mail Summons and Complaint to the Address the Property Owner Designated for the Receipt of All Relevant Correspondence Required Vacation of the Judgment of Foreclosure and Sale---Property Owner Was Never Properly Served Pursuant to CPLR 308(2)

 

The Second Department determined the property owner, Murphy, was entitled to vacate the judgment of foreclosure and sale because he was not properly served.  The summons was not served at Murphy's primary residence in Manhattan (Reade Street), where Murphy had always received correspondence about the subject property (a vacation home referred to as the Noyack property) and where Murphy had requested all correspondence regarding the subject property be sent.  Rather the summons was served on someone other than Murphy (who was not identified) at the Noyack property and was mailed there as well. The court determined the service was invalid because it did not comply with the two prongs of CPLR 308(2):

 

CPLR 308 sets forth the different ways in which service of process upon an individual can be effected in order for the court to obtain jurisdiction over that person. CPLR 308(2) provides, in pertinent part, that personal service upon a natural person may be made "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by . . . mailing the summons to the person to be served at his or her last known residence" (emphasis added). "Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with" ... . It "is a two-step form of service in which a delivery and a mailing are both essential" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C308:3).

 

Since, under the circumstances of this case, the Noyack property, although Murphy's vacation home, could properly be characterized as his dwelling place or usual place of abode ... , we agree with the Supreme Court that the plaintiff satisfied the first prong of CPLR 308(2) by a fair preponderance of the evidence by serving process upon a person of suitable age and discretion at the Noyack property ... .

 

However, the plaintiff failed to meet its burden of proof that its mailing of copies of the summons and complaint to that same address satisfied the second prong of CPLR 308(2). The undisputed evidence demonstrated that the plaintiff received notice from Murphy that the Reade Street address was to be used with respect to all notices concerning the Noyack property. Thereafter, from 2003 through December 2008, a period of time extending beyond the date of the mailing of copies of the summons and complaint to the Noyack property, the plaintiff actually utilized the Reade Street address to send Murphy all correspondence and notices relating to the Noyack property, including those referable to the mortgage statements and Murphy's default thereunder. The only documents that the plaintiff mailed to the Noyack property were the summons and complaint, despite its knowledge that Murphy had given notice in accordance with the terms of the mortgage that his residence was the Reade Street address, and that it was at that address that he was to receive all mail. Washington Mut. Bank v Murphy, 2015 NY Slip Op 03520, 1st Dept 4-29-15

 

 

 

CIVIL PROCEDURE/NEGLIGENCE/MEDICAL MALPRACTICE

 

All Causes of Action Against a Provider of Clinical Laboratory Services, Which Were Based Upon the Alleged Misreading of a Tissue Sample, Governed by the 2 1/2-Year Medical Malpractice Statute of Limitations

 

The First Department determined that all the causes of action against Quest, a clinical laboratory which analyzed a Pap smear tissue sample, were subject to the two-and-one-half-year statute of limitations for medical malpractice actions (as opposed to the three-year statute for negligence actions generally).  The complaint alleged Quest negligently misread the tissue sample.  In addition, the complaint alleged regulatory infractions, i.e., no plan for error reduction and failure to adequately implement, maintain or supervise quality assurance.  The court explained the relevant law:

 

It is settled that a negligent act or omission "that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice" ... . Laboratory services, such as Quest's, performed at the direction of a physician are an integral part of the process of rendering medical treatment ... . Accordingly, a claim stemming from the rendition of such services is a medical malpractice claim ... .

 

Plaintiffs however make additional claims that Quest failed to properly employ a plan for error reduction and failed to adequately implement, maintain or supervise quality assurance. These claims cannot be distinguished from allegations of medical malpractice. In applying the statute of limitations, courts must look to the reality or essence of a claim rather than its form ... . The critical factor in distinguishing whether conduct may be deemed malpractice or ordinary negligence is the nature of the duty owed to the plaintiff that the defendant allegedly breached ... . The additional claims put forth in this case would not be actionable in the absence of the misreading of the tissue sample, the basis of the malpractice claim. All of the regulatory infractions alleged by plaintiffs bear a substantial relationship to the rendition of medical treatment ... . Annunziata v Quest Diagnostics Inc., 2015 NY Slip Op 03466, 1st Dept 4-28-15

 

 

CRIMINAL LAW/CONSTITUTIONAL LAW

 

Defendant Convicted of Violating an Unconstitutional Statute Has Committed No Crime

 

The Second Department, in vacating defendant's conviction for attempted aggravated harassment, explained that when a substantive criminal statute, here Penal Law 240.30 (1), has been held unconstitutional, the defendant convicted of violating the statute has committed no crime:

 

"Where a substantive criminal statute has been held unconstitutional, there is no alternative but to give the decision retroactive effect for the declaration of unconstitutionality is a statement that the defendant has committed no crime" ... [.] ... [T]he Court of Appeals held that Penal Law § 240.30(1), as written at the time of the defendant's conviction, was unconstitutionally vague and overbroad under both the state and federal constitutions ... . Accordingly, the defendant's conviction of attempted aggravated harassment in the second degree must be vacated ... . People v Cesaire, 2015 NY Slip Op 03556, 2nd Dept 4-29-15

 

 

CRIMINAL LAW

 

Defendant's Statement Was Made In Response to the Functional Equivalent of a Question Designed to Elicit an Incriminatory Response and Should Have Been Suppressed

 

The Third Department determined a statement made by the defendant after he had been arrested and was being transported to the police station was not "spontaneous" (as County Court found) and should have been suppressed. At the arrest scene one of defendant's "associates" indicated defendant might have drugs in his anal cavity.  In the police car, an officer said to the defendant that he hoped defendant did not have any more drugs on him and the defendant said he probably did.  During a subsequent search drugs were found in defendant's anal cavity. Although defendant's statement indicating he probably had more drugs on him should have been suppressed because it was made in response to a police statement designed to elicit an incriminating response, the drugs themselves were not subject to suppression.  The Third Department determined the search which turned up the drugs was not triggered by the statement:

 

 

The admissibility of a statement made by a defendant in custody depends on whether it was "the product of 'express questioning or its functional equivalent'" ... . The operative question is whether, in context, "the officer should have known that his statement was 'reasonably likely to evoke an incriminating response from the suspect'" ... . In our view, County Court erred in concluding that the inculpatory statement was admissible because it was simply a spontaneous response to a declaration by [the officer]. For a statement to be spontaneous, it must be self-generated without "inducement, provocation, encouragement or acquiescense, no matter how subtly employed" ... . Coming on the heels of [the officer's] explanation that defendant would be searched as part of the booking process, and having been informed by the passenger that defendant may have hidden additional drugs on his person, we find [the officer's] statement to be the functional equivalent of a question intended to elicit an incriminating response ... . Since defendant was in custody and had not been given Miranda warnings, the statement should have been suppressed as involuntary. People v George, 2015 NY Slip Op 03574, 3rd Dept 4-30-15

 

 

CRIMINAL LAW/EVIDENCE

 

Cross-Examination About the Omission of Exculpatory Information from a Statement Made to Police Is Not the Same as Cross-Examination About the Exercise of the Right to Remain Silent

 

The First Department noted that defendant was properly cross-examined about the omission of exculpatory information provided in his direct testimony from the statement he had given to police. "After receiving Miranda warnings, and agreeing to provide a statement to the police, defendant made statements that omitted significant exculpatory matter that he included in his trial testimony. Under the circumstances, this was an unnatural omission, and a permissible basis for impeachment...".  People v Brown, 2015 NY Slip Op 03469, 1st Dept, 4-28-15

 

 

 

Insufficient Foundation for Introduction of (Hearsay) Business Record, Conviction Reversed

 

The Second Department reversed defendant's conviction because a proper foundation was not made for the introduction of a hearsay business record.  The People failed to demonstrate the record was "made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" ... .  People v Cordova, 2015 NY Slip Op 03559, 2nd Dept 4-29-15

 

 

 

CRIMINAL LAW/EVIDENCE

 

The Defendant Had an Expectation of Privacy In an Envelope Containing His Personal Belongings---The Belongings Were Placed in the Envelope Upon Defendant's Admission to a Hospital---Even though the Police Were Under the Impression the Defendant Was a Crime Victim, Not a Perpetrator, at the Time the Contents of the Envelope Were Examined, the Search Was Not Justified---Defendant Had an Expectation of Privacy Re: the Contents of the Envelope---The People Were Unable to Meet their "Burden of Going Forward" at the Suppression Hearing Because They Could Not Demonstrate the Legality of the Police Conduct

 

The Second Department ordered a new trial after determining defendant's motion to suppress should have been granted.  Defendant was admitted to a hospital with a gunshot wound and a ring and his cell phone in his possession were placed in an envelope by hospital personnel.  Defendant was later identified as the perpetrator of a robbery who was shot by the homeowner.  The ring in the envelope had been stolen in the robbery.  At the time the police at the hospital opened the envelope, however, they were under the impression the defendant was a victim and the cell phone was examined in an attempt to identify next of kin. The Second Department held that, notwithstanding the defendant's ostensible status as a "victim," not a perpetrator, he had an expectation of privacy in the contents of the envelope and the police not were not justified in opening the envelope and examining its contents.  The People failed to meet their "burden of going forward" at the suppression hearing because the legality of the police conduct was not demonstrated:

 

"On a motion by a defendant to suppress physical evidence, the People have the burden of going forward to show the legality of the police conduct in the first instance'" ... . Here, the People did not meet this burden. The People's contention that the police had probable cause to search the bag containing the defendant's personal belongings because it contained evidence of a crime is without merit ... . The defendant had an expectation of privacy in his personal belongings despite the fact that he was being treated at the hospital and his belongings had been taken by hospital personnel and given to the police for the purpose of safeguarding them ... . "[T]he fact that the [police] perceived the defendant to be a victim rather than a suspect did not strip the defendant of Fourth Amendment protection" ..., regardless of the Nassau detective's testimony that the cell phone was searched for the purpose of finding next of kin information. People v Salvodon, 2015 NY Slip Op 03570, 2nd Dept 4-29-15

 

 

 

CRIMINAL LAW/ATTORNEYS

 

The Decision Whether to Raise the Defense of Justification Is for the Defendant, Not Defense Counsel, to Make---Counsel Was Not Ineffective for Failing to Raise the Defense Over Defendant's Objection---The Court Did Not Err By Failing to Instruct the Jury, Sua Sponte, on the Justification Defense In Response to a Jury Note Which Indicated the Jury Was Considering It

 

The Second Department, in a detailed and extensive opinion by Justice Mastro (not fully summarized here), over an equally detailed and extensive two-justice dissent, determined that defense counsel was not ineffective, and the court did not err, in rejecting the justification defense.  The defendant, accused of murder, insisted on a misidentification defense in this one-eyewitness case.  The defendant made it clear he did not want to rely on the justification defense (which would contradict his claim of innocence). In response to a jury note which implied the jury was considering whether the defendant had acted in self-defense, the judge, in accordance with the wishes of defense counsel, did not explain the justification defense to the jury and directed the jury to consider only the issue of intent.  On appeal, the defendant argued defense counsel was ineffective in not raising the justification defense and the judge erred by not instructing the jury on the defense sua sponte in response to the jury's note.  In rejecting those arguments, the Second Department held that the decision whether to rely on the justification defense was for the defendant, not defense counsel, to make, and no error was made by defense counsel or the judge in following defendant's wishes:

 

...[W]hen a defendant accepts the assistance of counsel, he or she retains authority only over certain fundamental decisions, such as whether to plead guilty, whether to waive a jury trial, whether to testify at trial, and whether to take an appeal ... . Matters of strategy and tactics, such as whether to request the submission of lesser-included offenses for the jury's consideration ..., whether to seek or consent to a mistrial ... , or whether to introduce certain evidence at trial ..., generally fall within the purview of counsel. However, and of particular significance in the present case, the Court of Appeals has made clear that "a defendant unquestionably has the right to chart his own defense" ... . Contrary to the defendant's current position, his decision to pursue a defense based solely on misidentification, and to affirmatively reject an alternate defense based on justification in steadfast furtherance of that misidentification defense, involved a matter that was "personal" and "fundamental" to him ..., and "did not implicate a matter of trial strategy or tactics" ... . Indeed, under our law there simply is no more personal and fundamental right than that of the accused to rise before the trial justice and proclaim—to the court and to the world—his or her complete factual innocence of the crimes with which he or she has been charged. To require defense counsel in this case, over his client's objection, to undermine that assertion of innocence by the injection into the case of a factually and logically inconsistent defense would, under the circumstances presented, impermissibly compromise that personal right. People v Clark, 2015 NY Slip Op 03558, 2nd Dept 4-29-15

 

 

CRIMINAL LAW/ATTORNEYS

 

The Prosecutor's Acting As an Unsworn Witness (Suggesting He Had Been Present at a Trial In Which the Defense Expert Had Lied) and The Prosecutor's Repeated Questioning of  the Expert and Another Defense Witness About Their Alleged Lying Deprived Defendant of a Fair Trial on the Murder Count

 

The Second Department reversed defendant's murder conviction because of the misconduct of the prosecutor in questioning the defense expert and another defense witness.  The prosecutor acted as an unsworn witness by suggesting he was present in a trial where the defense expert lied and the prosecutor improperly and repeatedly questioned the expert and another defense witness about their alleged lying:

 

The prosecutorial misconduct during the voir dire questioning and cross-examination of the defense's expert included statements that the expert had repeatedly lied to judges in other cases and during his testimony in the instant case. In addition, the prosecutor presented himself as an unsworn witness at the trial, suggesting that he had been present at the trial of another case at which the defendant's expert had lied. The prosecutor furthermore repeatedly questioned another defense witness about lying. The cumulative effect of this misconduct ... unfairly deprived the defendant of the ability to present his defense of extreme emotional disturbance to the charge of murder in the second degree ... . People v Martinez, 2015 NY Slip Op 03568, 2nd Dept 4-29-15

 

 

CRIMINAL LAW/ATTORNEYS

 

Defendant's Indelible Right to Counsel Did Not Attach When the Attorney for Defendant's Husband's Estate Communicated with the Police---The Attorney Was Unaware that Defendant Was a Suspect In Her Husband's Death at the Time of the Communication

 

The Fourth Department determined a communication with the police by the attorney who represented the estate of defendant's husband did not trigger the attachment of her indelible right to counsel (rendering a subsequent statement inadmissible).  The defendant was convicted of murdering her husband.  At the time the probate attorney communicated with the police, he identified himself as the estate's attorney and was not aware defendant was a suspect in her husband's death:

 

The evidence established that defendant was the personal representative of the estate ..., and that the attorney's representation of her was only with respect to her role as personal representative of the estate. The attorney testified that at no time did he know that defendant was a suspect in decedent's death, which he believed to have been a suicide; that he identified himself as the attorney for decedent's estate in his communications with the police; and that he would not have given defendant advice related to a criminal investigation because to do so would be a conflict of interest with his role as the attorney for the estate. It is well established that, although "an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of counsel . . . , a relationship formed in a civil matter is not entitled to the same deference" ... . People v Castor, 2015 NY Slip Op 03648, 4th Dept 5-1-15

 

 

CRIMINAL LAW

 

Attempted Criminal Possession of a Weapon Third Degree Is Not a Violent Felony When It is the Top Count of an Indictment---It is a Violent Felony Only If It Is a "Lesser Included" Offense

 

The Second Department determined defendant was improperly sentenced as a second violent felony offender.  Attempted criminal possession of a weapon in the third degree is not a violent felony when it is the top count in an indictment (as it was in this case).  It is only considered a violent felony when it is a "lesser included" offense:

 

In People v Dickerson (85 NY2d 870, 871-872), the Court of Appeals determined that a plea of guilty to attempted criminal possession of a weapon in the third degree, when charged in "the top count" of a superior court information, did not constitute a violent felony pursuant to Penal Law § 70.02(1)(d). Under Penal Law § 70.02(1)(d), the crime of attempted criminal possession of a weapon in the third degree constitutes a class E violent felony offense only when the defendant is convicted of such charge as "a lesser included offense . . . as defined in section 220.20 of the criminal procedure law." CPL 220.20(1) defines a "lesser included offense" as one where the defendant pleads "to an offense of lesser grade than one charged in a count of an indictment." "Thus, according to the plain statutory language, a class E violent felony offense is reserved for accuseds who plead guilty to attempted criminal possession of a weapon in the third degree as a lesser included offense under an indictment charging a greater offense" (People v Dickerson, 85 NY2d at 872). Here, in 2005, the defendant entered a plea of guilty to attempted criminal possession of a weapon in the third degree as the sole count of a superior court information. Therefore, the defendant's conviction of that crime, upon his plea of guilty, did not constitute a violent felony pursuant to Penal Law § 70.02 (1)(d) ... . People v Millazzo, 2015 NY Slip Op 03569, 2nd Dept 4-29-15

 

 

 

CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA)/FAMILY LAW

 

Juvenile Delinquency Adjudications Can Not Be Considered in the Criminal History Categories of a Risk Assessment Instrument (RAI)---However the Adjudications Can Be Considered When Deciding Whether to Depart from the Recommended Risk Level

 

 

The Third Department, in a full-fledged opinion by Justice Rose, indicated its prior rulings should not be followed and determined that juvenile delinquency adjudications may not be considered under risk factors 8 and 9 (criminal history) for the purpose of assessing points in the risk assessment instrument (RAI). However the adjudications may be considered in determining whether to depart from the recommended risk level:

 

Relying on People v Campbell (98 AD3d 5 [2d Dept 2012], lv denied 20 NY3d 853 [2012]), defendant contended that Family Ct Act § 381.2 (1) precluded the use of the juvenile delinquency adjudication and, without the 30 points for criminal history, defendant would be presumptively classified as a risk level I sex offender. County Court, citing our previous decisions in People v Pride (37 AD3d 957 [2007], lv denied 8 NY3d 812 [2007]) and People v Dort (18 AD3d 23 [2005], lv denied 4 NY3d 885 [2005]), denied defendant's challenge to the 30-point assessment and classified defendant as a risk level II sex offender. Defendant appeals.

 

We reverse. We agree with the holding of People v Campbell (supra) that the Board "exceeded its authority by adopting that portion of the [Sex Offender Registration Act] Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender's criminal history" (id. at 12; see Family Ct Act § 380.1 [1]...). Contrary to the People's argument, the fact that the points at issue in Campbell were assessed under risk factor 8 of the RAI does not require a different conclusion because both risk factor 8 and risk factor 9 fall within the criminal history category of the RAI. To the extent that our prior decisions suggest that juvenile delinquency adjudications may be considered crimes for purposes of the RAI, we note that the conflict between the Guidelines and the Family Ct Act was not raised in those cases and they should no longer be followed. Our ruling is limited, however, to precluding the use of juvenile delinquency adjudications to assess points for criminal history under the RAI, and we do not hold that the facts underlying a juvenile delinquency adjudication may not be considered when determining whether to depart from the recommended risk level ... . People v Shaffer, 2015 NY Slip Op 03586, 3rd Dept 4-30-15

 

 

CRIMINAL LAW/EVIDENCE

 

The "Physical Intrusion" by the Police Officer (Tapping the Defendant's Pocket) Was Not Justified by Reasonable Suspicion of a Crime---The Subsequent Frisk of the Defendant Was Similarly Not Justified---The Arrest Was Therefore Invalid--All Seized Items and Statements Made by the Defendant Should Have Been Suppressed

 

The First Department determined the police officer's observations of the defendant's actions (head turning both ways) in a "high narcotics area" justified his approach of the defendant, who was sitting in a car (founded suspicion/common-law right of inquiry).  Asking the defendant what was in his pocket after the defendant pulled his hand from his jacket was also justified. However, the officer's "tapping" of an object in defendant's pocket was not justified.  The intrusion (tapping the pocket) and the subsequent frisk of the defendant were not supported by reasonable suspicion of a crime or by the need to ensure the officer's safety. The arrest was invalid and the motion to suppress all seized items, as well as the statements made by the defendant, should have been granted: 

 

Defendant was the passenger in a vehicle stopped by the police at approximately 9 p.m. in a "high narcotics area." As an officer approached the passenger side of the vehicle, he noticed defendant's "head turning both ways and a lot of . . . movement coming from the area of the front passenger seat." As he reached the passenger side window, he saw defendant, who appeared nervous, "pulling his hand from his jacket, from the fold of his jacket." When the officer asked defendant what he "put in [his] jacket," defendant "mumbled something unintelligible or really didn't say much." The officer then reached into the car, "tapped" the pocket of defendant's jacket with the flashlight he was holding, and felt "something hard." 

 

The officer's observations, up until the time he arrived at the passenger window, gave rise to founded suspicion that criminality was afoot, and so justified his question regarding what defendant had put in his pocket, which constituted a common-law inquiry ... . However, we find that the physical intrusion of tapping defendant's pocket was unauthorized. The circumstances did not give rise to the reasonable suspicion required to authorize a frisk. Nor was the officer's conduct justifiable as a "minimal self-protective measure"..., which is permissible in furtherance of the common-law right of inquiry, where sufficient concerns for personal safety are present ... . The circumstances, viewed as a whole, did not suggest any need for the officer to take such a precaution. At the time of the officer's intrusion, defendant was not reaching for an area where a weapon might be located, there was no suggestion that a weapon was present or that violence was imminent, and there was no other basis for a self-protective intrusion.

 

Because the ensuing frisk outside the car, and the resulting arrest, depended on the initial improper intrusion, they were invalid as well. In any event, we also find that the search of the plastic bag following defendant's arrest was not supported by exigent circumstances ... . People v Butler, 2015 NY Slip Op 03458, 1st Dept 4-28-15

 

 

CRIMINAL LAW/EVIDENCE

​

The Fact that One of Four Men Approached for a Level One Street Inquiry Ran Did Not Provide the Police with Reasonable Suspicion that Defendant, Who Obeyed the Police Commands, Was Involved in a Crime

 

The First Department determined that the police did not have sufficient cause to detain four men, including the defendant, on the street. The fact that one of the four men subsequently ran did not provide any additional justification for detaining defendant. The police had enough information about a near-by robbery only to justify a "level one" street inquiry of the four men, not detention.  While detained without sufficient cause, defendant was asked by the police to lift up his shirt, revealing a gun.  Absent "reasonable suspicion" of involvement in a crime, the defendant should not have been detained to await the show-up. Absent an indication defendant posed a danger to the police officers, the defendant should not have been asked to lift his shirt:

 

...[T]he group of men was in a location to which a group of robbers had been reported to have fled only minutes earlier, giving the officers an articulable reason for inquiring into why the men were in the area ... . The question, then, is whether the encounter ever escalated to a point that the police would have been justified in holding the men at the scene while the complainant was transported to it.

 

...[R]easonable suspicion is a necessary predicate to a detention for a showup identification ... . Further, a person's flight is sufficient to create the reasonable suspicion necessary to escalate a level one or level two encounter to a level three detention, so long as other circumstances are attendant, such as a high-crime location and activity suggesting, although not alone creating, reasonable suspicion that the person fleeing the scene may be engaged in criminal conduct ... . In all of the cases which discuss flight as the determining factor in creating reasonable suspicion, however, the defendant is the person who fled. Here, of course, defendant did not flee; he obeyed the officers' direction to stop and to submit to their questioning. People v Thompson, 2015 NY Slip Op 03605 1st Dept 4-30-15

 

 

CRIMINAL LAW/APPEALS

 

Defects in On-the-Record Waiver of Appeal Not Cured by Written Waiver

 

The Second Department, in determining defendant's waiver of appeal was insufficient, noted that signing a written waiver does not cure defects in the court's on-the-record inquiry about the defendant's understanding of the waiver:

 

The record fails to establish that the defendant's purported waiver of his right to appeal was knowing, voluntary, and intelligent ... . An appeal waiver is not valid unless the defendant's understanding of the waiver is evident on the face of the record ... . Here, the trial court's statement to the defendant that he was giving up his right to appeal, followed by its inquiry as to whether his attorney had explained that right to him, was insufficient to demonstrate a valid waiver ... . The defendant's execution of a written waiver "is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right" ... . People v Little, 2015 NY Slip Op 03567, 2nd Dept 4-29-15

 

 

 

CONTRACT LAW/DEBTOR-CREDITOR/CIVIL PROCEDURE

 

Third-Party Beneficiary of an Indemnification Agreement May Enforce Obligations Owed to the Judgment Debtor by the Indemnifying Party

 

The Second Department determined the third-party beneficiary of an indemnification agreement could bring an action to collect a debt by suing the entity which entered the indemnification agreement with the judgment debtor. "Pursuant to CPLR 5227, a special proceeding may be commenced by a judgment creditor 'against any person who it is shown is or will become indebted to the judgment debtor.' Such a proceeding is properly asserted against one who agreed to indemnify the judgment debtor in the underlying proceeding ... . The judgment creditor stands in the judgment debtor's shoes, and may enforce the obligations owed to the judgment debtor by the indemnifying party... ". Matter of White Plains Plaza Realty, LLC v Cappelli Enters., Inc., 2015 NY Slip Op 03549, 2nd Dept 4-29-15

 

FAMILY LAW/ATTORNEYS

 

Court Has Discretion to Grant a Recess to Allow a Conference Between a Lawyer and a Testifying Witness

 

In a decision affirming Family Court's findings in a juvenile delinquency proceeding, the Second Department noted that a judge has the discretion to recess the proceedings to allow a conference between a lawyer and the witness:

 

"[T]he decision to grant a recess and to allow a conference between a lawyer and a testifying witness falls within the broad discretion allowed a trial court in its management of a trial" ... . Contrary to the appellant's contention, the fact-finding court providently exercised its discretion in granting the presentment agency's application for a mid-testimony conference with a testifying witness ... . Matter of Isaiah D., 2015 NY Slip Op 03528, 2nd Dept 4-29-15

 

 

WORKERS' COMPENSATION/NEGLIGENCE/MUNICIPAL LAW

 

Plaintiff Was Injured at Work and Again When the Ambulance Taking Him to the Hospital Was Involved in an Accident---Exclusive-Remedy Aspect of Workers' Compensation Did Not Preclude a Negligence Suit Stemming from the Ambulance Accident

 

Plaintiff was injured on the job, and was injured again when the ambulance taking him to the hospital was involved in an accident.  The Second Department determined the exclusive-remedy aspect of workers' compensation did not preclude a negligence action arising out of the ambulance accident:

 

"In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment" (... see Workers Compensation Law §§ 11, 29[6]). However, even where a plaintiff received workers' compensation benefits, he or she is not precluded from commencing a separate action based on subsequent negligent conduct to recover damages for injuries causally related to the initial on-the-job injury, but which did not arise out of or in the course of the plaintiff's employment ... .

 

Here, notwithstanding the plaintiff's claim for workers' compensation benefits for the injuries he sustained [at work], he is not precluded from commencing a separate action to recover damages caused by separate injuries that occurred outside the scope of his employment ... . Matias v City of New York, 2015 NY Slip Op 03506, 1st Dept 4-29-15

 

 

 

ZONING

 

Statutory Balancing Test Properly Applied In Denial of Area Variance Re: Lot-Width

 

The Second Department determined the zoning board's denial of an area variance re: lot-width had a rational basis and should not have been disturbed by Supreme Court. The Second Department explained how the zoning board is to apply the five statutory factors: "In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted (see Town Law § 267-b[3][b]...). The zoning board, in applying the balancing test, is not required to justify its determination with supporting evidence for each of the five statutory factors, as long as its determination balancing the relevant considerations is rational ... . ... The granting of the variances would have resulted in the creation of the most nonconforming lot in a unique neighborhood ... , the requested variances were substantial ... , and the hardship was self-created... .  Matter of Traendly v Zoning Bd. of Appeals of Town of Southold, 2015 NY Slip Op 03548, 1st Dept 4-29-15

 

 

ZONING/MUNICIPAL LAW/CIVIL PROCEDURE

 

Town Board Is Not a Proper Party In an Action Seeking Review of a Determination Made by the Town's Zoning Board

 

The Second Department noted that the Town Board is not a proper party to an action seeking review of a determination by the town's Zoning Board.  The Zoning Board "is an independent, quasi-judicial, administrative arm of the Town ... . The Town Board ... had no jurisdiction to hear or determine the subject application and, in fact, neither heard nor determined it." Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 2015 NY Slip Op 03547, 2nd Dept 4-29-15

 

 

 

ZONING/ADMINISTRATIVE LAW

 

Denial of Special Use Permit Reversed As Arbitrary and Capricious/Difference Between Special Use Permit and Use Variance Explained

 

The Second Department determined that the denial of 7-Eleven's petition for a special exception (also referred to as a special use permit) for operation of a convenience store was arbitrary and capricious.  The court explained the difference between a special use permit and a use variance. A special use permit gives a property owner permission to use property in a way that is consistent with the zoning ordinance but not necessarily allowed as of right. A use variance gives the owner permission to use the property in a manner inconsistent with the zoning ordinance.  The proof burden is much lighter for a special use permit, as opposed to a use variance.  The proponent of a special use permit need only show compliance with legislatively imposed conditions, while the proponent of a use variance must show undue hardship in complying with the ordinance. Here no evidence was presented to support the denial of the special use permit:

 

A special exception, commonly known as a special use permit, "gives [a property owner] permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right" ... . By contrast, a use variance gives a property owner permission to use the property in a manner inconsistent with a local zoning ordinance. "The significance of this distinction is that the inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood" ... . Accordingly, "the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a [use] variance, the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use, while the latter must show an undue hardship in complying with the ordinance" ... . Matter of 7-Eleven, Inc. v Incorporated Vil. of Mineola, 2015 NY Slip Op 03544, 2nd Dept 4-29-15